Q&A: Electing a New Board

Q. My condo complex has four buildings all told. The way we elect board members is based on the  highest number of votes from the four buildings. The problem is that the number of units in each building are not equal. For example one of the buildings has 28 units while the smallest building has 11 units and the other two have 17 units each. So it’s not unusual that the building with 28 units always dictates which candidates will be voted in. Our governing declaration has a provision that requires the board to be made up of one unit owner from the four buildings. Obviously the original intent of this provision was made to ensure equality across the board and prevent the board from becoming a total dictatorship. However the board stated this is not in the bylaws, and provided no explanation. I believe this provision is applicable and has been disregarded so the dictatorship can continue and dominate the board. What, if anything, can I do?

      —Seeking Fairness in Forest Glen

A. “Condominium elections can be the source of great consternation for many unit owners and board members,” says attorney James R. Stevens, a principal with the Chicago-based law firm of Chuhak & Tecson, P.C. “All too often association elections are more difficult than they should be due to confusion over how voting should operate based on association's bylaws and declaration. Generally, the association's declaration will provide for how elections should run and how individual votes are counted. Most associations use either a percentage ownership-based vote or a one unit, one vote scheme. Some using a percentage ownership-based vote will have cumulative voting, which allows a unit owner to divide their voting power over more than one candidate.”

“Associations with multiple buildings of varying size often have a provision to ensure that each building has a dedicated board seat. Here, the reader suggests that their association has a provision in the bylaws that requires representation for each building that is not being followed by the current board. While I cannot give legal advice without reviewing the specifics here, there may be a conflict between how the current board is managing the association's electoral process compared to the declaration and bylaws.”

“The declaration and bylaws must, generally, be followed to the letter by an association's board.  If the board is not following the declaration in a reasonable manner, unit owners can often take action through other provisions in the bylaws.  Most association declarations provide that unit owners can petition the board to remove a board member or band together and take action that the board refuses to do.  Here, the smaller buildings may want to consider what terms their declaration and bylaws allow; unit owner votes can remove board members and petition the board for action. Though the 28-unit building may control the board currently, the smaller buildings together contain more unit owners and can likely exert some "political" pressure if the declaration allows it.”

“Most attorneys who draft condominium declarations write in a unit owner vote provision that allows the unit owners to exert some popular pressure on boards that may not be undertaking their duties reasonably. Ultimately, though not favored or recommended in most situations, if the unpopular board is not taking care of its obligations under the declaration and the outgoing board continues to refuse to follow the strict letter of the declaration, unit owners may need to consider a lawsuit.”                            

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